26 ottobre 2007

By Avvocato Carlo Bottino 

Definition

The contract of mooring (contratto di ormeggio) is an italian atypical contract; the contract rules can space from the simple using the port structures for the landing, to the disbursement of launchings other services (as for instance the service of custody of the boat, the right to also have available the aqueous space in absence of the boat, the right to use bollards or rings of mooring)

This article concludes the survey on the main taxation on navigation giving a glance at the legal and tax aspects related to harbours and moorings.
 

Harbour

As first, it must be made clear that areas where harbours are built is part of the state property so that they cannot be transferred in the property of private subjects but can be only subject of a state concession and for a limited time.

By the concession private subjects obtain the right to use the state property area for state purposes and from that the following two legal rights arise on the goods subject of the concession:

A right of obligation, which is alike a lease contract. In this case the relationship between the state maritime property office and the concessionaire is subject to registration tax at 2% rate.A right of common, which is temporary as its length is limited to the duration of the concession.

In general, construction or reconstruction of a tourist harbour implies a right of common unless different provisions are set forth in the concession deed.The concession affects the relationship between the concessionaire and the owner of a pleasure boat as only rights included in the concession can be transferred (e.g. the length of a contract for a mooring cannot exceed the duration of the concession).

Moorings

Moorings can be rented or can be used by virtue of a shareholding on the concessionaire company that manages the tourist harbour.

In case of rent and should the agreement intervene between the harbour manager in his business activity and the owner of a pleasure boat on a tax standpoint VAT is applicable at 20% rate whilst should the harbour manager not carry any business activity only the registration tax at 2% rate applies.

The shareholding is comparable to share time-sharing on a legal point of view. In fact, its main feature is the right of each shareholder to use goods in the property of the harbour company for a limited time.

Specific tax rules are stated in case of shareholding as the transfer of the right to use the mooring is possible only by the transfer of property of the relating shares. Accordingly, as to the direct taxation the transfer of shares make arise an appreciation (therefore an income), which is the result of the purchase cost and the consideration for the transfer.

No VAT applies to the transfer of the shares, as it is VAT exempted but tax on Stock Exchange contracts is due in case of transfer of the stock certificate.
Companies that manage tourist harbours are deemed as dummy companies for VAT purposes. Particularly the ownership and management of sporting and leisure clubs, including those assigned to mooring, to shelter and to the service of pleasure boats, is not deemed business activity if the participation to the mentioned activities implies a free or for a consideration lower than the standard value enjoyment of the goods and the aforementioned facilities for the shareholder himself or for his family. Accordingly, companies that manage tourist harbours cannot deduct the VAT paid to suppliers for not business activities.

Services rendered to the shareholders, thus also the use of the mooring, are not VAT taxable transactions if included in the shareholders’ equity and if the consideration is lower than the standard value.

As a consequence harbour services are VAT taxable only if they are rendered to thirds or if rendered to shareholders the consideration for these services is lower than the standard value.

If you need a legal advice for leasing a mooring and calculation of any tax please contact us